Fasten your wonk belts: let’s talk rule layover waivers in the House

December 15, 2011

Last night, it became clear that the omnibus appropriations bill might not make it out of conference, apparently due to political issues related to to the payroll tax cut extension. In order to prepare for this possibility, late in the evening on Wednesday, three new pieces of legislation — including a new omnibus — were introduced in the House. At 11:40pm, the House adjourned. At 12:37am, the House Rules Committee added the three newly-introduced pieces of legislation to its website calendar of expected activity for the week, but took no official action on them.

With the possibility of a government shutdown looming on Friday night, several observers, cognizant of the chamber rules, remarked on the speed at which the House would be able to take up the new bills if the conference report did indeed fall apart. Here’s CQ ($):

Despite late-night hurried efforts, they missed the Wednesday filing deadline by about a half hour, making it unclear when the House will vote on the package. The chamber’s rules require that a full calendar day intervene between the publication of a bill text and a vote, but the current stopgap continuing resolution that funds most of the federal government (PL 112-55) expires Friday.

I’m not trying to pick on CQ — a lot of people said similar things — but while that paragraph gets the gist of things, it’s not really even close to correct. First off, the continuing resolution funds the government through Friday, so a funding gap can be averted with action taken anytime prior to Friday evening at midnight, me. Second, while there are definitely chamber rules that require bills to be available for a period of time prior to action, it’s (1) not a one-day intervening provision, (2) not a “calendar day” issue, and (3) not a gap between the publication of text and a vote.

Ok. There’s just a ton to talk about here. Let’s do it Q&A style.

Q: Bottom line: how quickly can you can get a brand-new bill you just wrote onto the House floor for consideration?

A: The most straightforward answer is this: assuming you want to structure the consideration of the bill and you don’t have a 2/3 supermajority supporting you, then you need to let at least one special rule lie over for one legislative day. That can technically be accomplished in just a few minutes, but in usual practice it means that if you generate something today, you can’t consider it until tomorrow.

Q: What the hell did you just say?

A: Ok. Let’s start from the beginning…

Q: How do you get something onto the floor of the House?

A: In order to be brought up on the floor, a measure usually has to be “privileged.” Under the normal chamber rules, only certain measures are privileged for floor consideration as certain times. In practice, there are two methods commonly used to achieve this privilege for something that is otherwise not privileged at the moment. The first is to suspend the rules. But that requires a 2/3 majority, and thus is usually only available for non-controversial legislation. The other method is for the House to adopt a special rule that grants privilege to your measure.

Q: But how do you get the special rule onto the floor?

A: Special Rules are House Resolutions reported from the Rules Committee. Under the general chamber Rules, such resolutions are automatically privileged. And so the Rules Committee — which is closely aligned with the leadership in the modern House — has the gate-keeping power to determine what measured will be made privileged for consideration.

Q: So the Rules Committee decides what comes to the floor?

A: Not exactly. Ultimately, the full membership of the chamber is in control of the rules. Change to the rules — no matter how temporary or minimal — must be approved by the chamber. Therefore, resolutions from the Rules Committee proposing special rules are adopted by the House by majority vote. In practice, the majority party virtually always holds together to support the rule. In some Congressses, not a single rule fails on the floor. When a rule is taken down on the floor, it’s a pretty clear sign that there is a major disagreement in the majority party.

Q: So why can’t they just write a special rule, immediately pass it on the floor, and then take up the newly privileged bill?

A: Because the chamber rules prohibit consideration of a special rule on the same legislative day it was reported from the Rules Committee. All special rules must lie over one legislative day. There are three exceptions to this: first, if it’s the last three days of a session; second, the one-day layover can be waived by a 2/3 vote on the floor; and third, it doesn’t apply if the special rule’s only purpose is to waive the three-day availability requirement for committee reports and conference reports.

Q: Wait, there’s a 3-day availability requirement?

A: Yes. Under chamber rules, measures reported by committee (and conference reports reported by conference committees) may not be considered on the floor until the text of the committee/conference report has been available for three calendar days. Similarly, unreported bills and resolutions may not be considered on the floor unless the text has been available for three calendar days.

Q: So how can they possibly consider the new omnibus prior to the Friday night deadline?

A: A special rule can be written that waives the three-day requirement.

Q: So special rules can just waive any rule of the House?

A: More or less. The only exceptions are that a special rule cannot waive the minority’s right to offer a motion to recommit a bill, and cannot waive the point of order against an unfunded mandate. But remember, a majority of the House has to agree to a special rule.

Q: So are these waivers common?

A: Yes, very much so. Virtually all controversial legislation moves through the House under a special rule. And most of those special rules waive all possible points of order against the bill: timing limitations such as the 3-day availability, content limitations such as the restriction on authorization legislation in appropriations bills, and amendment limitations, most importantly the restriction that amendments be germane. It’s the main reason that the majority doesn’t really have to sweat all of these requirements — they can all be waived by special rule.

Q: Wait, so the special rule also structures the amendment process for the bill?

A: Yup. At least most of the time. This is perhaps the chief substantive function of the rule. A rule might be “open” — allowing any and all germane amendments — but in the modern practice, rules are much more likely to be “closed” (no amendments allowed) or “structured” (allowing only certain amendments pre-approved by the rule.)

Q: How do you get an amendment into the rule?

A: When the Rules Committee is considering a special rule, Members may submit proposed amendments to the underlying bill, and then come and testify at the Rules Committee hearing on the special rule. The Rules Committee then decides which amendments to the bill to allow into the rule.

Q: So what does a rule look like?

A: As an example, here’s the complete text of H.Res.54, which provided for the consideration of H.359:

Resolved, That at any time after the adoption of this resolution the Speaker may, pursuant to clause 2(b) of rule XVIII, declare the House resolved into the Committee of the Whole House on the state of the Union for consideration of the bill (H.R. 359) to reduce Federal spending and the deficit by terminating taxpayer financing of presidential election campaigns and party conventions. The first reading of the bill shall be dispensed with. All points of order against consideration of the bill are waived. General debate shall be confined to the bill and shall not exceed one hour equally divided among and controlled by the chair and ranking minority member of the Committee on Ways and Means and the chair and ranking minority member of the Committee on House Administration. After general debate the bill shall be considered for amendment under the five-minute rule for a period not to exceed five hours. The bill shall be considered as read. All points of order against provisions in the bill are waived. No amendment to the bill shall be in order except those printed in the portion of the Congressional Record designated for that purpose in clause 8 of rule XVIII and except pro forma amendments for the purpose of debate. Each amendment so printed may be offered only by the Member who caused it to be printed or a designee and shall be considered as read. At the conclusion of consideration of the bill for amendment the Committee shall rise and report the bill to the House with such amendments as may have been adopted. The previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit with or without instructions.

Note that the rule (1) provides for H.359 to be brought up on the floor; (2) structures debate; (3) waives all points of order against the bill; (4) makes in order any amendment that was pre-printed in the Congressional Record; (5) provides for five hours of total time for amending; and (6) makes provisions for a final passage vote to occur. A special rule is almost always accompanied by a short report explaining its provisions and listing votes taken in the committee; you can read the report for H.Res.54 here.

Q: So all of this supersedes the chamber rules?

A: Yes, assuming the special rule was validly adopted by the House. Much like a unanimous consent order in the Senate, the special rule governs proceedings as if it was the chamber rules for the duration for which it is in force.

Q: So what rules structure the debate on the special rule?

A: The chamber rules. Privileged resolutions from the Rules Committee are debated under the Hour rule in the House. That means that the Member that calls up the special rule (usually the chair of the Rules committee is the floor manager for a special rule) is given one hour for debate, half of which is customarily yielded to the minority. After that hour of debate, the floor manager moves the previous question, and assuming that it is ordered by the House, the rule is then voted upon.

Q: Back to the new omnibus bill. Walk through the whole thing again.

A: The Rules Committee will draft a rule, and perhaps hold a hearing on it for amendments. They will report the rule, and then on the next legislative day, the rule will be privileged for consideration. The House will consider the rule, which will waive the three-day availability requirement for the new omnibus bill and structure the debate and amendment process for the bill. The House will then vote on the rule, and if it passes the bill will be privileged for consideration and can be brought up immediately.

Q: So if they report the special rule out of committee today, this can happen tomorrow?

A: In all likelihood, yes. But that’s not necessarily the case. Chamber rules require that special rules from the Rules Committee lie over for one legislative day, which is different than a calendar day. A new legislative day begins when the House meets after an adjournment, and ends when the House adjourns. Usually, this lines up with the calendar day — the House adjourns sometime in the evening, and then meets again the next morning.

But it doesn’t have to be that way. The House could choose to adjourn in the middle of the afternoon for just a matter of minutes, and then upon return from the adjournment a new legislative day would have begun. Likewise, the House could recess overnight, and when the recess ended the next calendar day, a new legislative day would not have been created.

Q: So why doesn’t the majority just always adjourn for two minutes as a strategy?

A: There’s a pretty strong norm against it. The one-day layover rule exists so that you can’t surprise people with stuff on the floor. And that’s a sensible rule for a professionalized legislature. To allow the majority to instantly bring up anything at any time is potentially problematic. So using strategic adjournments is generally frowned-upon. It would definitely fall into the category of hardball.

Q: So what’s the significance of midnight in regard to the special rule?

A: Technically, nothing. Take last night, for example. The House adjourned at 11:40pm. At that point, even if the Rules Committee completed work on a special rule prior to midnight, it would not qualify to be reported to the floor on the legislative day that had been created on Wednesday morning. Conversely, if the House had not adjourned, then the Rules Committee could have taken as long as it wanted to report out a special rule, even if it happened after midnight. This happens upon occasion — the House is kept in session very late into the night in order to allow the Rules Committee to report a special rule out. After that, the House adjourns, and even if the adjournment was at 5am and the House meets again at 9am, the special rule will have laid over the requisite one legislative day.

Q: Are there other ways of bypassing the one-day layover rule for special rules?

A: Yes. The most common is to write a special rule changing that rule — waiving the special rule layover rule!

Q: Why would you do that? Wouldn’t that special rule need to lie for one day?

A: Yes, it would. But consider the following circumstance: you know you want to do something tomorrow, but you don’t have the bill ready to be introduced. So what you do is write a special rule today that, in effect, says “special rules do not have to lie over one day, but can be considered immediately.” Then, the next day you can pass that rule, and then you can immediately bring the real rule to the floor, pass that, and then you can bring the bill to the floor.

Q: Does that really happen?

A:Yes, with some regularity. It happened back on July 29, when H.Res.382 was passed. Here’s the full text:

Resolved, That the requirement of clause 6(a) of rule XIII for a two-thirds vote to consider a report from the Committee on Rules on the same day it is presented to the House is waived with respect to any resolution reported through the legislative day of August 2, 2011.

Note that it simply waivers the 2/3 requirement, since (as mentioned above) any privileged resolution from the Rules Committee can be adopted same-day if it gets 2/3 vote. The rule was passed during the debt ceiling negotiations, so that if things came down to the wire on August 2, a rule and a bill could be moved quickly.

Q: You mentioned that the layover rule and the availability rules don’t apply at the end of the session.

A: That’s right. The current chamber rules waive the one-day layover for special rules during the last three days of a session and waive the availability rule for bills and conference reports during the last six days of session. Since the House often does not pass an end-of-session adjournment resolution until right before it happens, those last days are often unknowns. To combat this, the House will occasionally pass a special rule toward the end of a session waiving the one-day layover or the three-day availability for the remainder of the session.

Q: All of this sounds nothing like the Senate.

A: That’s right, because it’s not anything like the Senate. The Senate can really only adopt the equivalent of a special rule by unanimous consent, and that is one of the key functional differences between the chambers: the majority in the House can more of less do what it wants, because it can change the rules at will. The minority protections in the Senate prevent changes to the rules by a simple majority, and therefore things like structuring debate or limiting amendment can only be accomplished by unanimous consent or complicated strategic maneuvering.

[...] beyond the issue of the filibuster in the Senate. For example, House rules allow the majority to easily alter the rules, which in turn makes controlling the amendment process quite trivial. In the Senate, on the other [...]